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TMI Blog2017 (8) TMI 603X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant for non-payment of service tax on 'commission paid to overseas agents' under 'Business Auxiliary Service'. The appellant contested the said show cause notice by filing his reply. However, rejecting the objections raised by the appellant, the Joint Commissioner confirmed the demand vide order dated August 27, 2008. Writ petition was filed in the High Court in March, 2012. As it was filed four years after the demand was confirmed, for this reason, writ petition and writ appeal of the appellant have been dismissed. 3) If one goes by the aforesaid facts alone, it may not be wrong to form an opinion that the challenge laid to the demand was belated. However, the question is as to whether the appellant had duly and satisfactorily explained the delay in approaching the Court after a period of four years. Entire focus of the arguments of the learned counsel for the appellant was on this aspect with the submission that the High Court totally overlooked and ignored the explanations given which furnished sufficient cause for approaching the Court in March, 2012. 4) In this behalf, the learned counsel referred to the following facts about which there is no dispute. As aforesaid, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to the explanation given for delayed approach to the Court, it is stated by the appellant that it was aware that there were numerous other litigations pending from 2007 onwards by various parties who were under genuine and the bonafide belief that they were not liable to pay the service tax. However, the appellant themselves were unable to file a statutory appeal before the Departmental Appellate Authorities, since the file had been misplaced due to a change of managerial set-up in the organisation as the partnership firm was in the process of dissolution and the concern was being converted into a sole proprietorship which took place on January 24, 2009. In other litigations, it was held that service tax was not payable in the absence of appropriate provision at the relevant time and it became payable only w.e.f. April 18, 2006 when Section 66A was inserted in the Finance Act, as a charging section. On that basis, on September 26, 2011, the Ministry of Finance issued a circular bearing No. F. No. 276/8/2009-CX8A which stated that the service tax liability on any taxable service provided a non-resident or a person located outside India to a recipient in India stating that the se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Tribunal, which had attained finality as it was affirmed till the Supreme Court. This Court held that: "23. ... The respondents before us did not challenge these cancellation orders till the year 1996 i.e. for a period of 9 years. It means that they had accepted the cancellation of their appointments. They woke up in the year 1996 only after finding that some other persons whose appointment orders were also cancelled got the relief. By that time, nine years had passed. The earlier judgment had granted the relief to the parties before the Court. It would also be pertinent to highlight that these respondents have not joined service nor working like the employees who succeeded in earlier case before the Tribunal. As of today, 27 years have passed after the issuance of cancellation orders. Therefore, not only was there unexplained delay and laches in filing the claim petition after a period of 9 years, it would be totally unjust to direct the appellants to give them appointment as of today i.e. after a period of 27 years when most of these respondents would be almost 50 years of age or above. 11) In Rup Diamonds & Ors. v. Union of India & Ors. (1989) 2 SCC 356, the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not waiving the remedy, he has put the other party in a position in which it would not be reasonable to place him if the remedy were afterwards to be asserted. In such cases lapse of time and delay are most material. Upon these considerations rests the doctrine of laches." 14) In U.P. Jal Nigam & Anr. v. Jaswant Singh & Anr. (2006) 11 SCC 464, the issue pertained to entitlement of the employees of U.P. Jal Nigam to continue in service up to the age of 60 years. 15) In Harwindra Kumar v. Chief Engineer, Karmik & Ors., this Court had earlier held that these employees were in fact entitled to continue in service up to the age of 60 years. After the aforesaid decision, a spat of writ petitions came to be filed in the High Court by those who had retired long back. The question that arose for consideration was as to whether the employees who did not wake up to challenge their retirement orders, and accepted the same, and had collected their post retirement benefits as well, could be given relief in the light of the decision delivered in Harwindra Kumar (supra). The Court refused to extend benefit applying the principle of delay and laches. It was held that an important factor in exerci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istry of Finance, Government of India has issued this circular dated September 26, 2011stating that such a liability would arise w.e.f. April 18, 2006. Relevant portion of the said order reads as under: "2. In view of the aforementioned judgments of the Hon'ble Supreme Court, the service tax liability on any taxable service provided by a non resident or a person located outside India, to a recipient in India, would arise w.e.f. 18.4.2006, i.e., the date of enactment of section 66A of the Finance Act, 1994. The Board has accepted this position. Accordingly, the instruction F No. 275/7/201 0-CX8A, dated 30.6.2010 stands rescinded. 3. Appropriate action may please be taken accordingly in the pending disputes." 17) It is clear from the aforesaid circular that in 'pending disputes', the Government decided not to press for payment of service tax in such cases. Intention was clear, namely, this circular would not apply to those cases which were already over and were not pending on that date. Otherwise, all those persons who had already paid the demand earlier without protesting the same would start claiming refund of those payments. Therefore, this circular would not come to the aid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently. 22.2. However, this principle is subject to well-recognised exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim. 22.3. However, this exception may not apply in those cases where the judgment pronounced by the court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated persons. Such a sit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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